Legal Commentary

My earlier post on discerning majority will when contradictory preferences exist on different levels of generality has led to a long and interesting exchange with Orin Kerr.  The sum of our disagreement seems to come down to whether a legislature (or demos) can ever really have contradictory preferences, or at least express contradictory preferences in legislative enactments.  I say yes, Orin seems to say no.

So far as I can understand, Orin's position seems to be that if the same body expresses a disliking for a general category (e.g. animals in the park), but liking of a more specific instance of the category (e.g. dogs in the park), then we must reconcile these apparently contraditory preferences by holding that the specific trumps the general.  So if the legislature enacts a statute saying "no animals in the park" but then enacts a statute saying "everyone must exercise a dog in the park," then we should understand that the reference to "animals" in the first enactment really meant "all animals except dogs."  And if and when the legislature enacts more instances (cats) that contradict the original enactment, the understanding is not that the original enactment was repealed, but that the legislatures original meaning contained those exceptions as well.

Orin's position is not really exceptional.  It is most clearly supported by a line of Supreme Court cases culminating in Marsh v. Chambers, where the Supreme Court basically held that because the First Congress included so many people from the constitutional convention, anything passed by the first congress is constitutional.  This makes sense only if we understand the First Congress and the constitutional convention as essentially the same legislative body, and have an assumption that the same legislative body cannot (or at least is unlikely to) make contraditory pronouncements.

That said, I still think it is wrong.  The cheap point is that Marbury v. Madison invalidated a statute enacted by the First Congress.  More fundamentally, this conception of textual meaning says that text means, and only means, whatever consequences the people who drafted it thought it would produce.  It is what Jack Balkin calls "original expected application."  At the extreme, practically nobody really subscribes to this view of textual meaning, since it would imply that we would really have to ask what James Madison thought about the internet when dealing with the First and Fourth Amendments.

If we accept that text has independent meaning from the subjective expected appliation of its drafter, then legislatures can make self-contradictory enactments because they can have self-contradictory preferences at different levels of abstraction.  A legislature that simultaneously says "no animals in the park" and "everyone must walk dogs in the park" is contradicting itself, not having some secret usage of the word "animal."